The American Judiciary

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Title: The American Judiciary

Author: Simeon E. Baldwin, LLD

Release Date: August, 2005 [EBook #8691] [Yes, we are more than one year ahead of schedule] [This file was first posted on August 1, 2003]

Edition: 10

Language: English

*** START OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***

Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, Charles Franks and the Online Distributed Proofreading Team

THE AMERICAN JUDICIARY

BY

SIMEON E. BALDWIN, LL.D.

CONTENTS

PART

CASES CITED.

I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES.

II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS.

PART I

CHAPTER

I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY.

II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS.

III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT.

IV. THE FORCE OF JUDICIAL PRECEDENTS.

V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW.

VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW.

VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW.

PART II

VIII. THE ORGANIZATION OF THE COURTS OF THE STATES.

IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES.

X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES, AND OF THE UNITED STATES JUDICIARY TO THE STATES.

XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES.

XII. TRIAL BY JURY.

XIII. FORMALITIES IN JUDICIAL PROCEDURE.

XIV. TRIAL COURTS FOR CIVIL CAUSES.

XV. PROBATE COURTS.

XVI. BANKRUPTCY AND INSOLVENCY COURTS.

XVII. CRIMINAL PROCEDURE.

XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT.

XIX. APPELLATE COURTS.

XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT.

XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL LAW.

XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES.

XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH.

XXIV. THE LAW'S DELAYS.

XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY.

INDEX.

* * * * *

TABLE OF CASES

  Ableman v. Booth

  Allinson, Hale v.

  American Insurance Co. v. Canter

  Ames v. Kansas

  Ames, Smyth v.

  Andrews, Ex parte

  Anthes, Commonwealth v.

  Bachert v. Lehigh Coal and Navigation Co.

  Baldwin, Robertson v.

  Bank, Bardes v.

  Bank of Kentucky, Briscoe v.

  Bank of Mississippi v. Duncan

  Bank of the U. S., Osborn v.

  Bardes v. Bank

  Barrows v. Bell

  Batchelder v. Moore

  Baxter v. Brooks

  Baxter, State v.

  Bean v. Beckwith

  Bean, Beckwith v.

  Beckham, Taylor v.

  Beckwith v. Bean

  Beckwith, Bean v.

  Bell, Barrows v.

  Bell's Gap R. R. Co., McCloskey v.

  Bernard, Coggs v.

  Biddle, Green v.

  Bidwell, Downes v.

  Bissell v. Dickerson

  Blacker, Board of Supervisors v.

  Blair v. Williams

  Blake v. McClung

  Board of Supervisors v. Blacker

  Bodley v. Gaither

  Boffman, Hickman v.

  Bonham's case

  Booth v. Clark

  Booth, Ableman v.

  Borden, Luther v.

  Bowman v. Middleton

  Boyd v. Thayer

  Boyd v. U. S.

  Bradburn, Mincey v.

  Bradley v. Fisher

  Bradley v. New Haven

  Bradley, Ex parte

  Brainerd, Fitch v.

  Branch, In re

  Brashears, Lapsley v.

  Briggs v. Garrett

  Brine v. Insurance Co.

  Briscoe v. Bank of Kentucky

  Brooks v. State

  Brooks, Baxter v.

  Brown, Kellogg v.

  Brown, Parkersburg v.

  Bulkley, State v.

  Bull, Calder v.

  Burgess v. Seligman

  Burr's Trial

  Burrows, Nudd v.

  Bush, Perry v.

  Bushnell, Ex parte

  Calder v. Bull

  California, Hurtado v.

  Call Publishing Co., Western Union Telegraph Co. v.

  Calvin v. Huntley

  Canfield v. Mitchell

  Canter, American Insurance Co. v.

  Carriere, Tua v.

  Cherokee Nation v. Georgia,

  Chisholm v. Georgia

  Christmas v. Russell

  Church v. Pearne

  City of South Bend v. Turner

  Claflin v. Houseman

  Clark, Booth v.

  Clarke's Appeal

  Cleveland, Painesville and Eastern R. R. Co., v.

    Pritschau

  Clymer, Norris v.

  Cochran, Gernon v.

  Coffin v. United States

  Coggs v. Bernard

  Cohens v. Virginia

  Coleman v. Tennessee

  Coler v. Tacoma Railway and Power Co.

  Colt, Stanley v.

  Commonwealth v. Anthes

  Conn. Pipe Mfg. Co., Ward v.

  Consul of Spain v. Consul of Great Britain

  Cooper, Application of

  Cooper, In re

  Cooper, In the matter of

  Copass, Hall-Moody Institute v.

  Croswell, People v.

  Cunningham, State v.

  Danbury, Hoyt v.

  Dartmouth College v. Woodward

  Debs, U. S. v.

  Debs, In re

  Delaware, Lackawanna and Western R. R. Co., Forepaugh v.

  Demorest, Hutkoff, v.

  Dennison, Kentucky v.

  Deposit Bank v. Frankfort

  Dickerson, Bissell v.

  Diggs v. Wolcott

  Donoghue, Hanley v.

  Dorr v. United States

  Dorrance, Vanhorne's Lessee, v.

  Dougherty, Lanark v.

  Dow v. Johnson

  Downes v. Bidwell

  Dred Scott v. Sandford

  Drehman v. Stifle

  Duncan, Bank of Mississippi v.

  Duncan, Johnson v.

  Dyson v. Rhode Island Co.

  Eakin v. Raub

  Eckrich v. St. Louis Transit Co.

  Ellington, Miel v.

  Erdman v. Mitchell

  Exchange Bank v. Rice

  Farmers' Loan and Trust Co., Pollock v.

  Faulkner v. Hart

  Finney v. Guy

  Fish v. Smith

  Fisher, Bradley v.

  Fitch v. Brainerd

  Fletcher v. Peck

  Flynn v. Morgan

  Forepaugh v. Delaware, Lackawanna and Western R. R. Co.

  Frankfort, Deposit Bank v.

  French v. Waterbury

  Frost v. Leighton

  Gaither, Bodley v.

  Garland, Ex parte

  Garrett, Briggs v.

  Genesee Chief, The

  Georgia v. Stanton

  Georgia, Cherokee Nation v.

  Georgia, Chisholm v.

  Georgia, Worcester v.

  Gernon v. Cochran

  Gibbons v. Ogden

  Goshen v. Stonington

  Gould v. Hudson River R. R. Co.

  Grady's case

  Grapeshot, The

  Gray, James v.

  Green v. Biddle

  Griffin v. Wilcox

  Griswold, Hepburn v.

  Griswold, United States v.

  Grover & Baker Sewing Machine Co. v. Radcliffe

  Groves v. Slaughter

  Guy, Finney v.

  Hale v. Allinson

  Hall-Moody Institute v. Co-pass

  Ham v. McClaws

  Hanley v. Donoghue

  Hanover National Bank v. Moyses

  Hans v. Louisiana

  Harris, Norris v.

  Hart, Faulkner v.

  Hawes v. Oakland

  Hayburn's Case

  Hepburn v. Griswold

  Heywood, Wilcox v.

  Hickman v. Boffman

  Hildreth's Heirs v. McIntire's Devisee

  Hill v. Smith

  Hill, Koehler v.

  Hoffman, People v.

  Holmes v. Walton

  Houseman, Claflin v.

  Houser, State v.

  Howle, Metropolitan Life Insurance Co. v.

  Hoyt v. Danbury

  Hudson River R. R. Co., Gould v.

  Huntley, Calvin v.

  Hurtado, v. California

  Hutkoff v. Demorest

  Insurance Co., Brine v.

  International Distillery, Pearson v.

  Irvine v. Stone

  James v. Gray

  Jecker v. Montgomery

  Johnson v. Duncan

  Johnson v. People

  Johnson, Dow v.

  Johnson, Mississippi v.

  Johnson, State v.

  Joint Traffic Association, United States v.

  Judges, State v.

  Kansas, Ames v.

  Katz v. Walkinshaw

  Kellogg v. Brown

  Kellogg v. Warmoth

  Kentucky v. Dennison

  Kentucky, Louisville Ferry Co. v.

  Kepner v. U. S.

  Ketcham v. McNamara

  Kilbourn v. Thompson

  Klein, U. S. v.

  Kneedler v. Lane

  Koehler v. Hill

  Lachenmeyer, Pepin v.

  Lanark v. Dougherty

  La Ninfa, The

  Lane, Kneedler v.

  Lapsley v. Brashears

  Lee, State v.

  Legal Tender Cases, The

  Lehigh Coal and Navigation Co., Bachert v.

  Leighton, Frost v.,

  Lennon v. Rawitzer,

  Letson, Louisville, Cincinnati and Charleston R. R. Co. v.,

  Little Charles, The schooner, U. S. v.,

  Loan Association v. Topeka,

  Loomis v. Newhali,

  Lottawanna, The,

  Louisiana, Hans, v.,

  Louisville, Cincinnati and Charleston R. R. Co. v. Letson,

  Louisville Ferry Co. v. Kentucky,

  Luke v. Lyde,

  Luther v. Borden,

  Lyde, Luke v.

  McCardle, Ex parte,

  McClaws, Ham v.,

  McCloskey v. Bell's Gap R. R. Co.,

  McClung, Blake v.,

  McConnaughy, Pennoyer v.,

  McCulloch v. Maryland,

  McDaniel, Terry v.,

  McDowell v. Oyer,

  McFarland v. People,

  Mclntire's Devisee, Hildreth's Heirs v.,

  M'Kim v. Voorhies,

  McLeod's Case,

  McNamara, Ketcham v.,

  McVeigh v. Ripley

  Madison, Marbury v.,

  Main, State v.,

  Marbury v. Madison,

  Maryland, McCulloch v.,

  Mather, Rand v.,

  Merriman v. Social Mfg. Co.,

  Merryman, Ex parte,

  Metropolitan Life Insurance Co. v. Howle,

  Mial v. Ellington,

  Middleton, Bowman v.,

  Milligan, Ex parte,

  Miln, New York v.,

  Mincey v. Bradburn,

  Mississippi v. Johnson,

  Mitchell, Canfield v.,

  Mitchell, Erdman v.,

  Montgomery, Jecker v.,

  Moore, Ex parte,

  Moore, Batchelder v.,

  Morgan, Flynn v.,

  Mormon Church v. United States,

  Morrill, State v.,

  Moses Taylor, The,

  Moyses, Hanover National Bank v.,

  Mutual Reserve Fund Life Association, Vincent v.,

  Myers v. South Bethlehem

  Nash, United States v.,

  Neagle, In re,

  Neff, Pennoyer v.,

  Newhall, Loomis v.,

  New Haven, Bradley v.,

  New Jersey v. New York,

  Newman, Ex parte,

  New York v. Miln,

  New York, New Jersey v.,

  New York and New England R. R. Co., Rumsey v.,

  New York, New Haven and Hartford R. R. Co., Stack v.,

  Noble v. Union River Logging Co.,

  Norris v. Clymer,

  Norris v. Harris,

  Northern Securities Co. v. United States,

  Norwalk Street Railway Co.'s Appeal

  Nudd v. Burrows

  Oakland, Hawes v.

  Ogden v. Saunders

  Ogden, Gibbons v.

  Ohio and Mississippi R. R. Co. v. Wheeler

  Olcott, People v.

  Osborn v. Bank of the U. 8.

  Oyer, McDowell v.

  Parkersburg v. Brown

  Patterson, William

  Paul v. Virginia

  Pearne, Church v.

  Pearson v. International Distillery

  Pease, Starr v.

  Peck, Fletcher v.

  Pennoyer v. McConnaughy

  Pennoyer v. Neff

  Pennsylvania, Prigg v.

  Pennsylvania Coal Co., Sanderson v.

  People v. Croswell

  People v. Hoffman

  People v. Olcott

  People v. Webb

  People, Johnson v.

  People, McFarland v.

  Pepin v. Lachenmeyer

  Perkins, United States v.

  Perry v. Bush,

  Peters, Wheaton v.

  Pollock v. Farmers' Loan and Trust Co.

  Prigg v. Pennsylvania

  Pritschau, Cleveland, Painesville and Eastern R. R. Co. v.

  Radcliffe, Grover & Baker Sewing Machine Co. v.

  Rand v. Mather

  Raub, Eakin v.

  Rawitzer, Lennon v.

  Reese, United States v.

  Regents v. Williams

  Rhode Island Co., Dyson v.

  Rice, Exchange Bank v.

  Rich, Upshur County v.

  Ripley, McVeigh v.

  Robbins' Case

  Robertson v. Baldwin

  Robinson, Ex parte

  Royall, Ex parte

  Rumsey v. New York and New England R. R. Co.

  Russell, Christmas v.

  Rutgers v. Waddington

  Sanderson v. Penn. Coal Co.

  Sandford, Dred Scott v.

  Saunders, Ogden v.

  Scott v. Sandford

  Seligman, Burgess v.

  Shepherd, State v.

  Sheve, U. S. v.

  Siebold, Ex parte

  Sims' Case

  Slaughter, Groves v.

  Smith, Fish v.

  Smith, Hill v.

  Smith, U. S. v.

  Smyth v. Ames

  Social Mfg. Co., Merriman v.

  South Bethlehem, Myers v.

  Sparf v. U. S.

  St. Louis Transit Co., Eckrich v.

  Stack v. New York, New Haven and Hartford R. R. Co.

  Stanley v. Colt

  Stanley, U. S. v.

  Stanton, Georgia v.

  Starr v. Pease

  State v. Baxter

  State v. Bulkley

  State v. Cunningham

  State v. Houser

  State v. Johnson

  State v. Judges

  State v. Lee

  State v. Main

  State v. Morrill

  State v. Shepherd

  State v. Travelers' Insurance Co.

  State v. Ward

  State v. Worden

  State, Brooks v.

  Stephens, petitioner

  Stifle, Drehman v.

  Stone, Irvine v.

  Stonington, Goshen v.

  Swift v. Tyson

  Tacoma Railway and Power Co., Coler v.

  Tassel's Case

  Taylor v. Beckham

  Tennessee, Coleman v.

  Terry v. McDaniel

  Thayer, Boyd v.

  The Genesee Chief

  The Grapeshot

  The La Ninfa

  The Lottawanna

  The Moses Taylor

  The Schooner Little Charles, U. S. v.

  The Thomas Jefferson

  Thomas Jefferson, The

  Thompson, Kilbourn v.

  Topeka, Loan Association v.

  Trademark Cases

  Travelers' Insurance Co., State v.

  Trevett v. Weeden

  Tua v. Carriere

  Turner, City of South Bend v.

  Tyson, Swift v.

  Union River Logging Co., Noble, v.

  United States v. Debs

  United States v. Griswold

  United States v. Joint Traffic Association

  United States v. Klein

  United States v. Nash

  United States v. Perkins

  United States v. The Schooner Little Charles

  United States v. Reese

  United States v. Robbins

  United States v. Sheve

  United States v. Smith

  United States v. Sparf

  United States v. Stanley

  United States v. Wilson

  United States v. Worrall

  United States, Boyd v.

  United States, Coffin v.

  United States, Dorr v.

  United States, Kepner v.

  United States, Mormon Church v.

  United States, Northern Securities Co. v.

  Upshur County v. Rich

  Vanhorne's lessee v. Dorrance

  Vincent v. Mutual Reserve Fund Life Association

  Virginia, Cohens v.

  Virginia, Paul v.

  Voorhies, M'Kim v.

  Waddington, Rutgers v.

  Walkinshaw, Katz v.

  Walton, Holmes v.

  Ward v. Conn. Pipe Mfg. Co.,

  Ward, State v.,

  Warmoth, Kellogg v.,

  Waterbury, French v.,

  Webb, People v.,

  Weeden, Trevett v.,

  Western Union Telegraph Co. v. Call Publishing Co.,

  Wheaton v. Peters,

  Wheeler, Ohio and Mississippi R. R. Co., v.,

  Wheeler's Appeal,

  Wilcox v. Heywood,

  Wilcox, Griffin v.,

  Williams, Blair v.,

  Williams, Regents v.,

  Wilson, U. S. v.,

  Woleott, Diggs v.,

  Woodward, Dartmouth College, v.,

  Worcester v. Georgia,

  Worden, State v.,

  Worrall, U. S. v.

Additional cases cited in Second edition.

  Janvrin v. Revere Water Co.,

  Revere Water Co., Janvrin, v.,

  O'Brien's Petition,

  Seery v. Waterbury,

  Waterbury, Seery v.

* * * * *

PART I

THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES

* * * * *

CHAPTER I

ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY

No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test.

The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776.

The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England.[Footnote: Poore, Charters and Constitutions, II, 1381.]

In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. Cf. citations by D. Davenport, arguendo, in Flynn v. Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.]

In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent.

The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law—the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one.

Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus:

"The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates…. Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression.[Footnote: Winthrop, History of New England," I, 322.]

The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form.

The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns.

This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitch v. Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancient aula regis, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, Justice and Police, 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: Two Centuries' Growth of American Law, 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frost v. Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order.

The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles.

A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: Two Centuries' Growth of American Law, 20.]

The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, Narrative and Critical History of America, V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, Maryland's First Courts, Reports of American Historical Association for 1901, 211; Osgood, The American Colonies in the Seventeenth Century, I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, History of the United States, II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.]

In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, Records of the Court of Assistants of Massachusetts Bay, I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.]

In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years.

No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction.

New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, Life of Edward Livingston, 26.]

As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See Am. Hist. Review, III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the Dominion of New England.[Footnote: Col. Rec. of Conn., III, 402, 411.]

South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, American Universal Geography, ed. 1796, 690; Osgood, The American Colonies in the Seventeenth Century, II, 279, 300.]

There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: Life and Works of John Adams, II, 280. See Chap. XIII.]

Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: State v. Ward, 43 Connecticut Reports, 489, 494.]

The benefit of the writ of habeas corpus, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the Declaration and Resolves of the first Continental Congress, they assert that the respective colonies are entitled to the Common Law of England, and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of the Habeas Corpus Act, that great Bulwark and Palladium of English Liberty.[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, Habeas Corpus in the Colonies," American Historical Review, VIII, 18.]

The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this:

ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.

A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power.

The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman v. Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, Digest of the Statutes of Kentucky, I, 613 (1807).]

In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not